Appealed from the First Judicial District Court for the Parish of Caddo

December 3, 1986

F. Jones and Sexton, JJ. and Heard, J., Pro Tempore.

JUDGE SEXTON.

This is an appeal by the City of Shreveport from a trial court
judgment finding the City fifty percent negligent in a
slip and fall incident. We sustain the exception of prescription
filed here and dismiss the demands of the plaintiff with prejudice.

FACTS

Plaintiff, Sharon Denise Randall, lived at 906 Andrew Street with
her mother and four children. She rented this property from Tony
Feducia. The residence was constructed many years ago, as was
a walkway extending to the front door of the residence. Subsequently,
the street was paved by the City and a public sidewalk was also
added. An eighteen inch drop-off was created by the construction
of the sidewalk where it met the pre-existing walkway. The accident
in question occurred on March 13, 1983, at the point of the intersection
between the public sidewalk and the walkway. The public sidewalk,
as well as a twenty-two foot easement for sidewalks and utilities,
was within a right-of-way of the City of Shreveport.

On the date of the accident, Sharon Denise Randall, 29 years of
age, had parked her car on the street at the curb and was walking
on the public sidewalk where it joined the private walkway. Ms.
Randall was wearing thong sandals and was carrying a package.
She testified that the accident occurred after dark at
approximately 8:00 p.m. Ms. Randall slipped or fell at
the point of the drop-off between the sidewalk and the
walkway suffering a broken ankle and knee injuries.

Ms. Randall originally brought suit against her landlord, Tony
Feducia, and his insurer on February 28, 1984, and added the
City of Shreveport as a defendant on August 31, 1984.

The trial court found that the City of Shreveport had breached
its duty to maintain the public right of way in a safe manner.
Ms. Randall, however, was held to be fifty percent at fault in
the cause of the accident. The trial court determined that plaintiff's
damages for pain, suffering and permanent disability amounted
to $60,000.00. The trial court thus rendered judgment for one-half
of that amount against the City and, in addition, awarded plaintiff
$5,754.32, representing the entire amount of her medical expenses.
The court absolved Tony Feducia, landowner, of all liability.

The City appeals this judgment of the trial court arguing that
the award is excessive and that the trial court should have reduced
special damages according to plaintiff's degree of fault. The
City also has filed a peremptory exception of prescription in
this Court asserting the one year prescription of LSA-C.C. Art.
3492 for the first time. The City contends that prescription
was not interrupted as to the City when suit was filed against
the co-defendant, Tony Feducia, because he was absolved of all
liability.

On the merits, Ms. Randall argues that the award is too low and
that the court erred in finding her comparatively negligent.
She also argues that the court erred in absolving Mr. Feducia
of liability. Initially, we address the plaintiff's contention
that her landlord, Mr. Feducia, is also at fault in causing her
injuries since the pivotal prescriptive issue hinges on that result.

LIABILITY OF FEDUCIA

In arguing Feducia's liability, plaintiff initially cites
Bates v. Blitz,
205 La. 536, 17 So.2d 816 (La. 1944),
as authority that a tenant is entitled to enjoyment of not
only the rented premises but also accessories such as
entrances and exits, etc. While
Bates
is authority on this point, the case dealt with a slip fall
incident on a platform which had been placed in front of rented
rooms on private premises in an attempt to afford the tenants
a safe passage over muddy and slushy spots caused by inadequate
drainage facilities.
Bates
is inapplicable to the case at bar in that the accident in
Bates
occurred on private property and involved neither public
sidewalks nor municipal property.

Plaintiff further contends that Mr. Feducia should be held liable
as an abutting property owner to municipal property. Plaintiff
asserts that under Shreveport City Ordinance Section 31-12, Mr.
Feducia is, as an abutting property owner, under a duty to keep
sidewalks, curbs, and banquettes adjoining his property in a
good and safe condition. The ordinance relied upon states:

Sec. 31-12. Duty of abutting property owners to keep sidewalks,
curbs and banquettes in repair; standards; lien on property if
city performs work.

(a) All record owners of property abutting on the streets of the
city shall keep the sidewalks, curbs and banquettes adjoining
their respective property in good and safe condition, in accordance
with standards to be set by the city engineer.

(b) The city engineer shall develop and
publish a set of standards for keeping sidewalks, curbs
and banquettes in proper repair and safe condition.
Said standards shall be made available to the general public.

(c) Whenever it shall become necessary to repair or rebuild a
sidewalk, banquette, or curb in the City of Shreveport in accordance
with the standards as promulgated by the city engineer, the department
of public works shall forward to the record owner of the property
by mail or in person, a written demand requiring said record
owner to repair or rebuild said sidewalk, banquette or curb in
accordance with the plans and specifications of the city engineer,
copy of which shall accompany said demand and in the event such
record owner refuses or neglects to do said work within a period
of thirty (30) days from the date of said notice, the city may
repair or rebuild said sidewalk, banquette or curb, advancing
the cost thereof and the city shall have a special lien and privilege
on said property to secure the reimbursement of the amount paid
by preference and priority over and above any other claim, privilege,
mortgage or encumbrance upon said property, said lien to become
effective against third parties from the date of registry in
the clerk of court's office of Caddo Parish, Louisiana, of an
affidavit setting out the character of said work, and the cost
thereof, as provided by existing lien laws.

Plaintiff's reliance on this ordinance is misplaced. As this court
pointed out through then Chief Judge Bolin in
Snow v. City of Shreveport,
287 So.2d 647 (La.App. 2d Cir. 1973),
writ denied 290 So.2d 332 and 290 So.2d 335 (La. 1974),
ordinances of this nature simply establish the
legal relationship between the city and the
adjoining property owner. They do not confer tort liability
on adjoining property owners unless that property owner actually
created or caused the defect involved. Of particular import is
that the
Snow v. City of Shreveport
decision cited with approval
Toppi v. Arbour,
119 So.2d 621 (La.App. 1st Cir. 1960).
Toppi
found that an ordinance equally as specific as that at issue
here failed to transfer a duty to maintain the sidewalk in a
safe condition from the municipality to the adjoining landowner.
The
Snow
court at page 650 determined that
Toppi
was authority for the proposition that such ordinances were
merely legislative recognition of the principal that a municipality
may hold the adjoining property owner financially responsible
for the cost of repairing the sidewalk but did not relieve the
City of its primary obligation toward the public to maintain
sidewalks in a safe condition.

There being no showing that Mr. Feducia was involved in creating
or causing the offending defect, he has not breached a duty which
he owed to this plaintiff. The trial court correctly found that
Feducia was not liable.

PRESCRIPTION

Having concluded that the trial court correctly
absolved the defendant Feducia of liability, we
turn to the effect of that finding on
the exception of prescription filed in this court.

The City raises the issue of prescription by a peremptory exception
filed in this court which contends that Ms. Randall's amendment
was not timely filed as to the City. The basis of this exception
is the fact that the trial court absolved the landowner Feducia
of liability. Thus, the City correctly points out that plaintiff
may not rely on LSA-C.C. Arts. 3462 and
35031
which provide that interruption of prescription against
one solidary obligor interrupts as to all.

However, plaintiff Randall counters by contending that timely
legal notice against the third party defendant is effective as
to the original plaintiff. She argues that since defendant Feducia
third partied the City within the 90-day requirement for incidental
demands allowed by LSA-C.C.P. Art.
1067,2
the City was thus put on notice of the demand
and the date of her amendment should be
unimportant.3

The issue presented is whether a third party petition — filed
more than one year after the accident but within the 90 days
of Article 1067 — interrupts prescription as to that third party
defendant so that the original plaintiff's subsequent amendment
adding that party as a co-defendant is timely.

The instant accident occurred on March 13, 1983. Plaintiff, Ms.
Randall, filed suit against her landlord, Tony Feducia, and his
insurer on February 28, 1984. Mr. Feducia then filed a third
party petition against the City of Shreveport on June 1, 1984.
Ms. Randall amended her petition thereafter on August 31, 1984,
to add the City as a defendant.

In support of her position, plaintiff cites
State Farm Mutual Automobile Insurance Company v. Farnsworth,
425 So.2d 827 (La.App. 5th Cir. 1982),
writ denied 433 So.2d 150 (La. 1983).
The facts of that case are strikingly similar to the case at bar.
State Farm, as the subrogee of its injured insurer, timely
filed an action against the driver and his insurer
of one of the vehicles involved in a multi-car accident on a
date prior to the tolling of prescription, July 9, 1979.
Just as in the instant case, another alleged tortfeasor was
sued by an original defendant over one year after the
accident on August 23, 1979, in a timely third party demand.
Thereafter, the original plaintiff amended to join the
third party defendant as an alleged tortfeasor. Just
as in the instant case, the original defendant
was absolved of liability and the issue was whether prescription
precluded the action against the sole tortfeasor.

In
Farnsworth,
the court found that the filing of a timely third
party action sufficiently placed the party on notice of a claim,
that the subsequent amending petition of the plaintiff encompassed
the same claim asserted by third party plaintiffs (and original
defendants), and thus prescription had not tolled, even though
the third party plaintiffs (and original defendants) were absolved
of all liability. The reasoning of
Farnsworth
turns on the court's determination that since the
third party defendant was put on notice within
the 90-day period for filing an incidental demand,
he should thus be rendered amenable to suit by the
original plaintiff.

Plaintiff also cites
Carona v. Radwin,
195 So.2d 465 (La.App. 4th Cir. 1967),
writ denied 250 La. 639, 197 So.2d 897 (La. 1967),
relied on by the
Farnsworth
panel in reaching its result. However,
Carona
differs from
Farnsworth
in that in
Carona
both the original suit and the third party demand were
filed well within the one year prescriptive period.
The plaintiff amended to add the third party as
a defendant more than one year after the accident. The
court held that the third party was on sufficient notice of the
pending suit within one year of the accident and thus had notice
within the prescriptive period.

It should be noted that subsequent to
Carona
the Fourth Circuit refused to allow the interruption of
prescription where a third party demand was filed after
the one year period had expired.
Brady v. Bernard,
230 So.2d 413 (La.App. 4th Cir. 1970);
Ward v. Aucoin,
222 So.2d 628 (La.App. 4th Cir. 1969).

In summary, the holding of
Farnsworth,
and the contention of the instant plaintiff, is that
since the third party demand of the original defendant
was filed after one year, but within the 90-day
period authorized for such demands by LSA-C.C.P. Art. 1067,
the subsequent demand by the original plaintiff against
the third party defendant is timely.

This position has been sharply criticized by Professor Howard
W. L'Enfant, Jr. in the following
terms.4

However, since prescription does not begin to run on a claim for
indemnification or contribution until the defendant is cast in
judgment, a third-party demand asserting such a claim would not
be barred by prescription even if filed more than ninety days
after service of the principal demand. In fact, the only limitation
on the filing of a third-party demand is whether the filing of
that demand will adversely affect trial of the principal action;
a third-party demand may be filed at any time before answer to
the principal demand is filed and may be filed thereafter with
the permission of the court if it will not retard the progress
of the principal action. Therefore, a third-party demand could
be filed timely long after the one-year period had expired. Under
the reasoning of
Farnsworth,
the third-party defendant could then be joined
as a co-defendant by the plaintiff. This result
seems to be at odds with the purpose of the prescription statutes,
i.e., to protect the defendant from stale claims, and, before
Farnsworth,
it had been possible only under the exception for
solidary obligors. [Emphasis ours.]

The reasoning of Professor L'Enfant is persuasive. We adopt it
and reject
Farnsworth.
The defendant City received no actual or theoretical
notice of the plaintiff's demands through either
the plaintiff or the third party plaintiff within the one year
prescriptive period. Plaintiff's action against the City
is therefore untimely.

The exception of prescription filed here by the defendant City
of Shreveport is sustained and the plaintiff's demands are dismissed
with prejudice.

Prescription is interrupted when the owner commences action against
the possessor, or when the obligee commences action against the
obligor, in a court of competent jurisdiction and venue. If action
is commenced in an incompetent court, or in an improper venue,
prescription is interrupted only as to a defendant served by
process within the prescriptive period.

LSA-C.C. Art. 3503 reads as follows:

Art. 3503. Solidary obligors

When prescription is interrupted against a solidary obligor, the
interruption is effective against all solidary obligors and their
successors.

When prescription is interrupted against a successor of a solidary
obligor, the interruption is effective against other successors
if the obligation is indivisible. If the obligation is divisible,
the interruption is effective against other successors only for
the portions for which they are bound.

Comment(s) to this article notes that it "does not change the law."
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Art. 1067. When prescribed incidental
or third party demand is not barred

An incidental demand is not barred by prescription or peremption
if it was not barred at the time the main demand was filed and
is filed within ninety days of date of service of main demand
or in the case of a third party defendant within ninety days
from service of process of the third party demand.
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3.
Feducia was served March 5, 1984, and third partied the City
on June 1, 1984, within the 90 days.
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